Singh (Migration)
[2024] AATA 3062
•13 August 2024
Singh (Migration) [2024] AATA 3062 (13 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Shaukatjeet Singh
REPRESENTATIVE: Mr Ashutosh Sharma (MARN: 1682588)
CASE NUMBER: 2205529
HOME AFFAIRS REFERENCE(S): BCC2021/12505
MEMBER:P. Maishman
DATE:13 August 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
Statement made on 13 August 2024 at 4:20pm
CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – original marriage certificate not provided – genuine de facto relationship – financial aspects – nature of the household – social aspects – representations to government authorities – nature of the commitment – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5CB, 5F, 65
Migration Regulations 1994 (Cth), r 1.09A; Schedule 2, cls 820.211, 820.221STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 28 March 2022 on the basis of his relationship with his sponsor, Janelle Hands. At that time, Class UK contained only one subclass: Subclass 820 (Partner). The criteria for the grant of this visa are set out in Part 820 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The delegate refused to grant the visa on the basis that the visa applicant did not satisfy cl 820.211(2)(a) because the delegate was not satisfied the applicant is the spouse or de facto partner of his sponsor.
The applicant appeared before the Tribunal on 17 July 2024 to give evidence and present arguments. The Tribunal the also received oral evidence from the sponsor, Janelle Hands.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal had before it a copy of the Department’s file containing the visa application and documents provided in support of the application referred to in the delegate’s decision record. Attached to the file is a certificate and notification pursuant to s 376 of the Act dated 26 April 2022.
The history of the application is outlined in the delegates decision record given to the Tribunal by the applicant. The delegate noted the applicant provided no documentary evidence of joint financial commitments with the sponsor; insufficient documentary evidence to support that he co-habits with the sponsor; inadequate evidence of the nature of any social recognition of their relationship; and little demonstrative evidence of the nature of the applicant and sponsor’s commitment to each other. The applicant gave the Tribunal a number of historical documents on 10 July 2024 which the Tribunal observed, notwithstanding the applicant being represented by a professional migration agent, appeared to mostly replicate information that had been considered by the Department to be unpersuasive. The Tribunal noted its hearing invitation dated 26 June 2024 alerted the applicant to provide relevant evidence and documents, with examples, prior to the hearing. The Tribunal considered the hearing had been on foot for two years and the applicant had ample opportunity to provide documents and information in support of his application. The Tribunal explained it would take into account any further supporting evidence it received prior to making its decision.
The Tribunal received further statements and photographs after the hearing on 19 and 21 July 2024 and 5 August 2024.
The issue in the present case is whether the applicant is the spouse or de facto partner of the sponsor.
Certificate pursuant to s 376 of the Act
The Tribunal wrote to the applicant on 26 June 2024 and provided him with a copy of the s 376 certificate dated 26 April 2022 from the Department’s file. The Tribunal invited the applicant to make written comments on the validity of the certificate and the favourable exercise of the Tribunal’s discretion to disclose the material identified. The applicant did not provide written comment about the validity of the certificate or the Tribunal’s discretion to disclose the material.
The Tribunal is not satisfied the s 376 certificate dated 26 April 2022 is valid. The certificate has not been properly signed by the delegate.
Whether the parties are in a spouse or de facto relationship
Clauses 820.211(2)(a) and 820.221 require that at the time the visa application was made, and at the time of this decision, the applicant is the spouse or de facto partner of an Australian citizen or Australian permanent resident or an eligible New Zealand citizen. In the present case the applicant claims to be the spouse of the sponsor who is an Australian citizen.
‘Spouse’ is defined in s 5F of the Act and provides that a person is the spouse of another where the two persons are in a married relationship. Persons in a married relationship must be married to each other under a marriage that is valid for the purposes of the Act, there must be a mutual commitment to a shared life as a married couple to the exclusion of all others, the relationship must be genuine and continuing, and the couple must live together, or not live separately and apart on a permanent basis: s 5F(2)(a)-(d).
Are the parties validly married?
The parties claim to have married in India in January 2017. The applicant gave the Department a purported translation of a marriage certificate, however the original document was not provided. The Tribunal also received affidavits deposed by the applicant and the sponsor and statements declared by the applicant and sponsor dated 17 January 2017, attesting that they married. The Tribunal received a Form No 1 seeking to register the marriage in accordance with the ‘Haryana compulsory registration of marriage act 2008’, however there is no corresponding document confirming the marriage has been registered.
On the evidence, the parties were not married to each other under a marriage that is valid for the purposes of the Act as required by s 5F(2)(a).
Are the parties in a de facto relationship?
As the parties are not married to each other under a marriage that is valid for the purposes of the Act, they cannot satisfy an essential requirement of a married relationship, but may meet the criteria on the basis of being in a de facto relationship as defined in s 5CB of the Act. A person is in a de facto relationship with another person to whom they are not married if they have a mutual commitment to a shared life to the exclusion of all others, the relationship is genuine and continuing, the couple live together, or do not live separately and apart on a permanent basis, and the couple are not related by family: s 5CB(2).
In forming an opinion whether they are in a de facto relationship, consideration must be given to all of the circumstances of the relationship. This includes evidence of the financial and social aspects and the nature of the parties’ household and their commitment to each other as set out in reg 1.09A(3) which is attached to this decision. Each of the specific matters contained in reg 1.09A(3) are effectively questions which must be answered: He v MIBP [2017] FCAFC 206.
The Tribunal considered the financial aspects of the applicant and the sponsor’s relationship.
The applicant told the Tribunal that he has never worked in Australia and is supported by family and friends who deposit money into his account whenever he needs. His sponsor receives an Australian government pension and he is not included on her pension record. The applicant is responsible to pay the insurance for a 2008 model Range Rover his friend has provided for his use. The applicant states that he pays for his groceries and utility bills and the sponsor pays the rent.
The sponsor said she receives payments from Centrelink. She claims she phoned Centrelink about her marriage. The sponsor told the Tribunal that she receives government subsidised rent, assessed on the basis that she is a single person. The sponsor said she intended to tell the housing authority of her marital status during the week of the hearing. The sponsor said the applicant gets money from India and repays her for the things that she purchases. She does not know how much the applicant receives from India. The sponsor confirmed the applicant does not pay rent but buys food for himself and contributes to the bills. The sponsor said that she pays a person $50 a week to prepare her meals.
The Tribunal finds the applicant and sponsor do not have joint ownership of assets or joint liabilities. The sponsor’s pension and rental subsidy are assessed on the basis that she is a single person. The sponsor and applicant have no legal obligations in respect of each other, nor do they pool their financial resources or share day-to-day household expenses.
The financial aspects of the applicant and sponsors relationship are not indicative of a couple in a genuine spouse or de facto relationship.
The Tribunal considered the nature of the household of the applicant and sponsor.
The applicant and sponsor do not have children for whom they are jointly responsible. The parties claim to share a bedroom in the two bed one bath unit. The applicant likes spice and cooks his own food. The sponsor cannot eat spicy food and uses a meal preparation service to prepare her food. The sponsor arranges a cleaner for their premises. They have a small backyard which they both look after. The landlord (state government) of the property does not know the applicant shares the sponsors accommodation.
The nature of the household of the applicant and sponsor is not indicative of a couple who share a genuine de facto or spouse relationship.
The Tribunal considered the social aspects of the applicant and sponsors relationship.
The parties gave consistent evidence that their friends and families consider them to be a genuine couple. They do not go out often because of the sponsors health concerns. A selection of photographs received after the hearing show the applicant and sponsor together and at what appears to be a family birthday party.
The Tribunal attributes some weight to the statutory declaration dated 20 July 2024 by the sponsor’s son, Timothy Marc Molnar-Hammond. Mr Molnar-Hammond refers to the applicant as his stepfather, describes he has seen their relationship growing over the years and he believes that they both care for each other.
The Tribunal acknowledges statutory declarations of the sponsor’s mother, Helen Rose Steele and brother, Stephen Robert Molnar dated 19 and 20 July 2024 respectively. Despite the passage of two and half years, the wording of the statutory declarations is the same as those provided in their statutory declarations dated 13 November 2021. The Tribunal attributes little weight to these statutory declarations as although they attest to a relationship they provide no insight into the development or maturity of that relationship, or genuine recognition of an enduring spouse or de facto relationship.
The applicant’s friend Gurjant Singh Sangha provided a statutory declaration dated 19 July 2024 indicating he has known the applicant personally for six years. Mr Sangha’s declaration that he has known the applicant’s ‘…partner from the time they were in relationship and got married’ is superficial and generic noting that the parties claim to have met in 2015 and married more than six years ago in 2017.
A letter from Geraldine Maddrell dated 18 July 2024 claims she has a neighbour of the applicant. She confirms that the applicant resides in the same complex as her. Ms Maddrell’s letter makes no comment of the sponsor residing in the complex. The Tribunal attributes no weight to Ms Maddrell’s letter as recognition that the applicant and sponsor reside together.
The Tribunal acknowledges the sponsors poor health may impact on the ability of the applicant and sponsor to socialise with others regularly. It is however of concern that the parties do not appear to declare themselves as spouses or de facto partners to government authorities such as Centrelink or the housing authority. The sponsors family and the applicant’s friend declare the applicant and sponsor to be a couple but the otherwise unrelated neighbour does not acknowledge that the sponsor resides in the same complex as the applicant.
The Tribunal finds that the applicant and sponsor do not represent themselves to government authorities as being in a de facto or spouse relationship with each other. The sponsor’s mother, brother and son and the applicant’s friend attest to the parties being in a relationship.
The social aspects of the applicant and sponsors relationship are not indicative of a couple who share a genuine spouse or de facto relationship.
The Tribunal considered the nature of the applicant and sponsors commitment to each other.
The Tribunal address the allegations outlined in the delegate’s decision record. The applicant and sponsor deny the relationship was ever broken. The sponsor said the applicant snoring annoyed her for a time. The applicant said the sponsors health coordinator did not like him and tried to have him kicked out of the sponsors premises. There were no restraining orders obtained and the sponsor and applicant have continued to reside together since the applicant came to Australia.
The sponsor confirmed she is in a genuine relationship with the applicant. He is aware of and assists her to deal with her medical condition. He has been her carer since he arrived in Australia in 2018.
The Tribunal gives some weight to the nature of the applicant and sponsors commitment to each other as indicative of a couple in a spouse or de facto relationship.
The Tribunal has had regard to the documentary and oral evidence. The parties claim to have lived together as a married couple since the applicant’s arrival in Australia in 2018 is not supported by demonstrable evidence about shared financial and household arrangements or social aspects that might be expected from a relationship of six years. The applicant demonstrated some knowledge of the sponsor’s medical condition and family suggesting he provides some care for her and he may have done so over the period he has been in Australia.
The Tribunal finds the applicant and sponsor do not have a genuine and continuing relationship as required in s 5CB(2)(b) of the Act.
On the basis of the above the Tribunal is not satisfied that the requirements of s 5CB(2) are met at the time the visa application was made or the time of this decision.
Therefore the applicant does not meet cl 820.211(2)(a).
For the reasons above, the applicant does not satisfy the criteria for the grant of the visa.
DECISION
The Tribunal affirms the decision not to grant the applicant a Partner (Temporary) (Class UK) visa.
P. Maishman
MemberATTACHMENT - Extract from Migration Regulations 1994
1.09A De facto partner and de facto relationship
(1)For subsection 5CB (3) of the Act, this regulation sets out arrangements for the purpose of determining whether 1 or more of the conditions in paragraphs 5CB (2) (a), (b), (c) and (d) of the Act exist.
Note 1 See regulation 2.03A for the prescribed criteria applicable to de facto partners.
Note 2 The effect of subsection 5CB (1) of the Act is that a person is the de facto partner of another person (whether of the same sex or a different sex) if the person is in a de facto relationship with the other person.
Subsection 5CB (2) sets out conditions about whether a de facto relationship exists, and subsection 5CB (3) permits the regulations to make arrangements in relation to the determination of whether 1 or more of those conditions exist.(2)If the Minister is considering an application for:
(a)a Partner (Migrant) (Class BC) visa; or
(b)a Partner (Provisional) (Class UF) visa; or
(c)a Partner (Residence) (Class BS) visa; or
(d)a Partner (Temporary) (Class UK) visa;
the Minister must consider all of the circumstances of the relationship, including the matters set out in subregulation (3).
(3)The matters for subregulation (2) are:
(a)the financial aspects of the relationship, including:
(i) any joint ownership of real estate or other major assets; and
(ii) any joint liabilities; and
(iii) the extent of any pooling of financial resources, especially in relation to major financial commitments; and
(iv) whether one person in the relationship owes any legal obligation in respect of the other; and
(v) the basis of any sharing of day to day household expenses; and
(b)the nature of the household, including:
(i) any joint responsibility for the care and support of children; and
(ii) the living arrangements of the persons; and
(iii) any sharing of the responsibility for housework; and
(c)the social aspects of the relationship, including:
(i) whether the persons represent themselves to other people as being in a de facto relationship with each other; and
(ii) the opinion of the persons’ friends and acquaintances about the nature of the relationship; and
(iii) any basis on which the persons plan and undertake joint social activities; and
(d)the nature of the persons’ commitment to each other, including:
(i) the duration of the relationship; and
(ii) the length of time during which the persons have lived together; and
(iii) the degree of companionship and emotional support that the persons draw from each other; and
(iv) whether the persons see the relationship as a long term one.
(4)If the Minister is considering an application for a visa of a class other than a class mentioned in subregulation (2), the Minister may consider any of the circumstances mentioned in subregulation (3).
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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